Recent U.S. Supreme Court cases make it apparent Oregonís death penalty statute is unconstitutional. Rather than waiting for judicial rulings to strike it down, the Oregon legislature should rewrite or abolish the death penalty now, since it is likely any legislative correction cannot be applied retroactively.

The Supreme Court held in Apprendi v. New Jersey, 530 US 466, 120 S Ct 2348, 147 L Ed2d 435 (2000), that any finding which authorizes increased punishment must be treated constitutionally as the equivalent of an element of an offense. Apprendi is the most important criminal law decision since the Court ordered lawyers be provided to indigent criminal defendants in Gideon v. Wainwright, 372 US 335 (1963). The Oregon Supreme Court has already accepted review on the constitutionality of the stateís felony sentencing guidelines, State v. Dilts, 179 Or App 238, 39 P3d 276, rev granted 335 Or 42, 57 P3d 581 (2002) and dangerous offender statute. Page v. Palmateer, 184 Or App 759, 56 P3d 965 (2002), rev granted ___ Or ___ (April 15, 2003) (S50171) ó and will likely find both sentencing schemes violate Apprendi.

But, Ring and Apprendi sweep with a broader brush than just requiring juries make findings authorizing increased punishment; rather, the Court held it must treat such findings as: 'the functional equivalent of an element of a greater offense,' Ring, 122 S Ct at 2403, quoting Apprendi, 530 US at 494, n19; see Sattazahn v. Pennsylvania, ___ US ___, 123 S Ct 732, 739, ___ L Ed2d ___ (Jan. 14, 2003)(plurality)(aggravating factors in death penalty case should be treated as offense elements for double jeopardy purposes).

Oregonís death penalty consequently violates Apprendi for several reasons. Most apparently, ORS 163.150(1)(b)(B), the future dangerousness provision, (which requires a jury find there is a probability the defendant will commit criminal acts of violence to impose a death sentence) is unconstitutional. Under Ring, the future dangerousness finding must be treated as the functional equivalent of an offense element, since it must be found before death may be imposed. The future dangerousness provision fails to pass constitutional muster, because it allows criminal punishment with proof less than beyond a reasonable doubt and allows criminal punishment of future misconduct.

Under the 14 Amendmentís Due Process Clause, offense elements must be proven beyond a reasonable doubt; instructions even indirectly relieving the state of that burden violate due process. SeeSandstrom v. Montana, 442 US 510, 518-28, 99 S Ct 2450, 61 L Ed2d 39 (1979)(mandatory, rebuttable inference instruction relieved state of burden of proof). Defining an element in terms of finding a probability is the equivalent to telling a jury to find the element by a preponderance of evidence; in either case, the governmentís burden of proof is reduced and thus violates due process.

Permitting punishment of future, rather than past, misconduct violates substantive due process. Substantive due process requirements focus on the historical understanding of the power of the states and federal government. SeeWashington v. Glucksberg, 521 US 702, 721, 117 S Ct 2258, 138 L Ed2d 772 (1997). It would be unprecedented in the history of Anglo-American jurisprudence to criminally punish an individual for future, rather than past, misconduct. The Oregon legislature can no more execute a person based on future misdeeds than direct imprisonment upon finding a person will commit a robbery in the future.

The Oregon legislature should act now rather than wait for the inevitable judicial rulings striking down Oregonís death penalty. This need for action is urgent, because a new death statute cannot be applied retroactively. It would, as a constitutional matter, be seen as a change in the substance of the crime of death-eligible aggravated murder and retroactive application thus violates ex post facto principles.

Given our stateís budget crisis, spending funds to continue a death penalty seems particularly unwise; it should instead be repealed. But, if legislators believe in a death penalty regardless of costs, an amended statute now would at least allow death sentences for individuals committing death-eligible murders after the amendment goes into effect and reduce the number of death sentences judicially reduced once the current statute is struck down.

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